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Section Review

An Argument in Favor of Judicial Retention Elections

By Anthony R. Scott

Anthony R. Scott is a 36-year veteran of law enforcement. He currently serves as chief of the Holyoke Police Department. He holds numerous awards and citations, including the 2001 Illinois Bar Association Law Enforcement Professional of the year. He has called for a constitutional amendment to have retention elections for judges every six years.

In the constitution of the commonwealth in the section entitled "Part the First, A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts," Article V clearly states, "All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them." With this as the backdrop, a citizen of the commonwealth has the right to ask that the judiciary be accountable to the people as indicated in Article V.

Article VII of the constitution states, "Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it." In the exercise of this incontestable, unalienable, and indefeasible right as a tax-paying citizen to reform, alter, or totally change the government or any part thereof with the backing of the majority of the people, I submit the following in favor of retention elections for judges.

Judges in the commonwealth are not accountable to anyone, let alone the people. They are appointed for life and on many occasions make extremely liberal decisions that negatively impact the safety of the citizens of the commonwealth.

This is not just my opinion, it is an opinion held by many residents of the commonwealth. In a poll commissioned by the American Bar Association it was found that three of four Americans have more confidence in judges they elect than in those who are appointed.

Speaking at the Suffolk University Law School prior to their election, Gov. Mitt Romney and Lt. Gov. Kerry Healey announced their proposals for making judges accountable. Romney said, "Right now, it is virtually impossible to remove liberal judges who shock our collective sense of outrage with inexcusably lenient sentences. Fixed terms will allow us to weed out judges who put criminals before victims and issue sentences that defy common sense."

Massachusetts Lawyers Weekly, in an editorial appearing in the April 22, 2002, issue called for public evaluations of the performance of judges. The article went on to state, "Demands for accountability resonate with many people, because judges wield enormous power."

Supreme Judicial Court Chief Justice Margaret H. Marshall announced in 2001 that judicial accountability and judicial performance evaluations are a top priority of the judicial branch. According to an Associated Press article, Marshall said, "In an age of greater visibility, judges must be held to higher standards."

In the 1995-1996 Massachusetts legislative session, Rep. Gary Coon filed House Bill No. 2387 calling for the election of judges. Rep. Nancy Evans filed House Bill No. 3562 calling for an amendment to the state's constitution to limit the term of judges. At the request of Steven B. Drobnis, House Bill No. 3575 was filed in the House of Representatives calling for an amendment to the constitution relative to the appointment and renewal of judges.

In the 1997-1998 legislative session, House Bill 1349, a re-filing of House Bill No. 3575, was again filed in the legislature.

In the 1999-2000 legislative session, House Bill No. 1766 was filed at the request of James J. Carroll calling for an amendment to the constitution relative to judges' tenure.

In the 2001-2002 legislative session, Senate Bill No. 894 was filed at the request of Carroll calling for an amendment to the constitution relative to judges' tenure. Rep. Michael Cahill filed House Bill No. 3357 calling for a constitutional amendment relative to the tenure of judges. Senate Bill No. 938 was filed at the request of Rosario Rajotte calling for an amendment to the constitution relative to judges' tenure.

Let's visit some of the outrages over the past couple of years that have been perpetrated by judges who have been appointed for life, as reported in the media and personal knowledge:

In an article by the Associated Press in November 2001 it states, "Two district court judges, former state representatives and longtime friends, have been relieved of duty and reportedly are being charged with perjury and abuse of power." A judge from the Malden District Court and one from the Gloucester District Court will be absent for an indefinite period of time according to Chief Justice Samuel E. Zoll. According to the article, Zoll did not give any reasons for the administrative moves.

In May 2002, the Commission on Judicial Conduct filed disciplinary charges against a Superior Court judge from Suffolk County contending that she made inappropriate personal attacks on prosecutors and coddled an admitted child molester. The charges were filed only after the judge had 63 complaints filed against her. The judge was out of control, according to media reports.

A judge in the Newburyport District Court permitted a proven domestic violence wife-beater to walk free without posting bail on March 12, 2002, for assaulting his wife and violating an order of protection. In a statement the wife wrote, "I am very afraid of him. Every time I talk to him he scares me." Three days after his release, he shot his wife to death and committed suicide. According to a domestic violence advocate, there were signs the husband was lethal. Two weeks before he shot his wife to death, he held her hostage in their Amesbury home and threatened to shoot her.

A judge from the New Bedford Superior Court, according to an article in the Boston Globe, is a "wrist-slapping" judge. According to an article in the Boston Herald on Feb. 13, 2002, this judge said of a 14-year-old rape victim, "She can't go through life as a victim. She's 14. She got raped. Tell her to get over it." However, the judge denied making the statement.

This same judge released on his personal recognizance a rape suspect who was accused of holding a gun on a 13-year-old female while raping her. This judge also released on his personal recognizance a Fall River man after he was recaptured following being on the run for a year and a half. According to a newspaper article, Bristol District Attorney Paul F. Walsh, Jr. said, "He's just opening the gates, he sees the courts as a social service agency to help defendants. All his compassion goes to the defendants and not the victims and that's not justice."

A Hampden County Family and Probate Court judge was suspended for three months without pay in June 2001. The public was barred from the hearing room and, behind closed doors, a "plea bargain" was reached. Michael P. Angelini, a lawyer for the Commission on Judicial Conduct, exited the sealed court room and announced, "I'm very pleased to report that a hearing will not be necessary, the judge has agreed to the validity of all the charges brought against her by the commission."

Recently a police sergeant in Shirley was shot and the perpetrator threatened to shoot any police officer he saw. In addition to the charge of shooting the sergeant, the defendant also was charged with numerous other serious charges relating to assault on young girls and attempted rape. The District Court judge set bail at $500,000. The defendant appealed to Superior Court for a bail reduction and a judge reduced the bail to $25,000. This is unacceptable to the Massachusetts Chiefs of Police Association and to all law enforcement officers.

In another case, in Springfield in 2001, a defendant was arrested for rape and released on his own personal recognizance. While out on the rape charges, he was arrested for operating a motor vehicle while his license was suspended. He was released on personal recognizance again and subsequently was arrested and charged with two counts of armed robbery. He was released again on his personal recognizance. He was arrested again for rape in the city of Holyoke and held by the District Court on $100,000 bail. He requested a bond-reduction hearing in Superior Court; the $100,000 was reduced to personal recognizance and he was again released. While out, he was arrested again on traffic violations and released again on his personal recognizance. While out on his personal recognizance, he committed two armed robberies. Warrants were obtained and he was arraigned in District Court and a judge set a bail on him. He went to Superior Court for a bond reduction hearing on the first rape charge and a judge finally held him on the initial rape charge, but not until after the man had inflicted harm on law-abiding, tax-paying citizens.

Still another case involves a defendant with a record of more than 100 charges filed against him between 1974 and 2001. When arrested in Holyoke, he was charged with shoplifting, possession of drugs, two default warrants and two straight warrants. According to his record, among other charges over the years he has been arrested nine times for assault with a dangerous weapon, 13 times for shoplifting, eight times for larceny, eight times for receiving stolen property, nine times for possession of hypodermic needles. He was out on his personal recognizance when arrested.

Officers from the Holyoke Police Department arrested an individual from a stolen vehicle. The officers responded to a call from a citizen who observed the defendant removing parts from a second vehicle in the parking lot of an apartment complex. The citizen called the police and reported his observations and informed the dispatcher that they saw the defendant arrive in the parking lot in a white vehicle following a brown vehicle. The operators of both vehicles began to remove parts of the brown vehicle and then the operator of the brown vehicle departed on foot. The defendant, operating the white vehicle, departed the parking lot and was stopped by the responding officer. The officer observed that the white vehicle's ignition was gone but the vehicle's engine was running. The officer ordered the defendant out of the vehicle and began to question him regarding the ownership of the vehicle. Shortly thereafter, a second officer arrived to back up the initial officer. This officer was in possession of the stolen vehicle report on the brown vehicle parked in the lot.

The defendant was arrested and charged with possession of stolen property, among other charges. His defense attorney filed a motion to suppress the evidence based on the Fourth, Fifth and Fourteenth Amendments of the United States Constitution and articles Twelve and Fourteen of the Massachusetts Declaration of Rights. The judge granted the motion indicating that the defendant had an expectation of privacy in a car he stole.

After Sept. 11, 2001, President George W. Bush ordered the FBI and other federal law enforcement agencies to form anti-terrorism task forces. In the Greater Springfield area, the local law enforcement agencies assigned members of their department to the local FBI anti-terrorism task force.

The Holyoke Police Department was notified by its member of the task force that the FBI wanted to interview a foreigner in this country with four passports who was wanted on two default warrants. This individual was arrested. The officers notified the assistant district attorney, the clerk magistrate and the presiding judge that the FBI wished to speak with the individual. With everyone being notified, the assistant district attorney requested a high bail for the two default warrants. The judge, having full knowledge that the FBI wished to speak with the defendant, also having knowledge that this country had been attacked by a foreign power, placed a $200 bail on the defendant. The defendant posted the bail and was gone before the FBI agents arrived to interrogate him.

In another jurisdiction in Western Massachusetts, a local District Court judge has a record of dismissing, finding individuals not guilty and continuing cases without a finding in class B, class D and class E narcotics cases. Over a three-year period this judge has entered one of these judicial actions in at least eight cases, with one charge being in a school zone. The defendant charged with the drug school zone violation was given credit for time served, 136 days, and released. Several of the defendants were charged with distribution of drugs.

There have been numerous organizations and individuals seeking the accountability of judges here in the commonwealth.

In an article by David Barton entitled "Should they be elected or appointed?," there are proposals in many state legislatures that state judges should not be chosen by voters but rather they should be appointed by the governor and then face retention elections.

Proponents of this plan argue that retention elections still keep judges accountable to the voters; however, a retention election clearly provides for judges an additional insulation from the public. In this article, Barton clearly points out that the framers of our United States Constitution saw more potential of tyranny from the judiciary then from either of the other two branches and so they carefully limited the judiciary. In the Federalist Papers it states, "the Judiciary is beyond comparison the weakest of the three departments of power.... [and] the general liberty of the people can never be endangered from that quarter." According to Barton, "The Framers made sure that judges were accountable to the people at all times."

Where is the accountability?

I propose that judges continue to be appointed by the governor and confirmed by the Governor's Council, as is the current procedure. However, I propose amending Part 2, c. 3, Article I of the Constitution to read, "The tenure, that all commission officers shall by law have in their office, shall be expressed in their respective commissions. All judicial officers, duly appointed, commissioned and sworn, shall hold their offices for a period of six years. After the expiration of the initial six year term, the judicial officer, if he or she so chooses, shall have his or her name placed upon the ballot, in the County where they have been seated for the majority of the six years, for a vote of affirmation. If the judicial officer chooses not to place his/her name upon the ballot his/her term shall immediately end and he or she can not be considered for appointment to any judicial position. If the judicial officer's name is placed upon the ballot and receives a majority vote of all votes cast he or she shall be reappointed for an additional six year period. If the judicial officer fails to receive a majority vote he or she shall not be eligible for reappointment to any judicial position. Should the judicial officer receive a vote of affirmation he or she will be eligible for a reappointment in like manner every six years thereafter. Provided however, the Governor, with the consent of the Council, may remove the judicial officer upon the address of both houses of the legislature and provided also, that the Governor, with the consent of the Council, may after due notice and hearing retire them because of advanced age or mental or physical disability; and provided further, that upon attaining seventy years of age said judges shall be retired. Such retirement shall be subject to any provisions made by law as to pensions or allowances payable to such officers upon their voluntary retirement."

I further propose that the article be amended to include, "The Clerk Magistrate in the County where a judicial officer's name is placed on the ballot, shall publish the judicial officer's sentencing and bail setting record on all F.B.I. Part I offenses for the previous six years in all County newspapers, on public access television channels within said County and post in all County courthouses. This shall be published a minimum of three weeks prior to the judicial officer's name being placed on the ballot. Immediately upon ratification of this amendment to the Massachusetts Constitution, all judicial officers who are presently judges shall have their names placed on the ballot in the County where they are presently seated at the first state wide-election for a vote of affirmation."

It is my opinion that members of the Supreme Judicial Court should not be subject to confirmation ballots by the people once appointed by the governor and confirmed by the Governor's Council. However, the justices of the high court should not serve past the age of 70.

Others invested with powers derived from the people are held accountable, such as senators, representatives, mayors, city councilors, alderman, selectmen, police chiefs, police officers and others. Those who are responsible for our health, education and travel, such as doctors, airline pilots, attorneys, teachers, etc. are also accountable. Yet, those who are appointed for life with unbridled power are not accountable.

In his book entitled "Guilty - The Collapse of Criminal Justice," Judge Harold J. Rothwax states, "Judges are not infallible - even Supreme Court justices. But we would hope that their decisions are thoughtful, reasonable, and well argued."

Judicial retention elections is a matter of accountability of the judiciary to the people.